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Leavitt v. State

Supreme Court of North Dakota

July 12, 2017

Heather Leavitt, Petitioner and Appellant
State of North Dakota, Respondent and Appellee

         Appeal from the District Court of Ward County, North Central Judicial District, the Honorable Douglas L. Mattson, Judge. AFFIRMED.

          Garrett D. Ludwig, Mandan ND, for petitioner and appellant.

          Kelly A. Dillon, Minot, ND, for respondent and appellee.


          Crothers, Justice.

         [¶ 1] Heather Leavitt appeals from a district court order summarily dismissing her application for post-conviction relief. Heather Leavitt argues the district court erred in summarily dismissing her application because she received ineffective assistance of counsel. We affirm the district court's order.


         [¶ 2] In 2014 a jury convicted Heather Leavitt of attempted murder. Her conviction was affirmed in State v. Leavitt, 2015 ND 146, 864 N.W.2d 472. There we summarized the facts of the underlying case as follows:

"On February 1, 2014, Timothy Leavitt woke up to being stabbed by an assailant in his home in Minot; he sustained serious injuries during the ensuing struggle, but was ultimately able to flee to safety. Although he was unable to positively identify his attacker, he described the assailant to authorities as 'having a pony-tail, the same stature as his wife [Heather Leavitt].' He described the knife used in the attack as having a black handle with metal dots and a long silver blade and noted it was identical to a set of knives he and his wife owned, which were no longer in his home, but were in his wife's possession. He also informed officers he lived in the house alone, he and his wife were separated, and they were sharing custody of their children. Officers observed evidence of an attack at the home and 'bloody footprints (stocking feet)' throughout the home and adjacent yards. A black stocking hat with darker blonde hair was found under the bed and a pony-tail band was also found in his home.
"Based on the authorities' investigation, Sergeant David Goodman applied for a search warrant to search Heather Leavitt's person, home, and vehicle, and Goodman provided an affidavit in support of his application. A search warrant was issued, officers executed the warrant, and evidence was collected. During the search of Heather Leavitt's home, officers seized her cell phone. Officers later applied for and received a warrant to search the phone's contents. Heather Leavitt was charged with attempted murder, and before trial, she moved to suppress evidence obtained from the two search warrants. At the hearing on the motion, the State conceded that any evidence obtained from Heather Leavitt's cell phone should be suppressed. The district court granted Heather Leavitt's motion to suppress as to the search of her cell phone, but denied it as to the search of her person, home, and vehicle. A jury ultimately convicted Heather Leavitt of attempted murder."

Id. at ¶ 2 and ¶ 3.

         [¶ 3] In March 2016 Heather Leavitt applied for post-conviction relief, arguing she received ineffective assistance of counsel. In April 2016 the State moved for summary disposition, arguing Heather Leavitt failed to raise a genuine issue of material fact. Heather Leavitt filed a motion to stay the determination of the State's motion for summary disposition until she filed a supplemental brief. The district court granted her motion. In May 2016 Heather Leavitt filed a supplemental application, arguing she received ineffective assistance of counsel when the lawyer representing her at trial failed to demand a Franks hearing because the affidavit on which the search warrant relied contained false and misleading statements and because favorable evidence was not presented at trial. The State renewed its motion for summary disposition. In November 2016 the district court granted the State's motion, dismissing Heather Leavitt's application. Heather Leavitt appeals.


         [¶ 4] "Post-conviction relief proceedings are civil in nature and are governed by the North Dakota Rules of Civil Procedure." Kinsella v. State, 2013 ND 238, ¶ 4, 840 N.W.2d 625 (quoting Clark v. State, 2008 ND 234, ¶ 11, 758 N.W.2d 900). "A district court may summarily dismiss an application for post-conviction relief if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Howard v. State, 2015 ND 102, ¶ 8, 863 N.W.2d 203 (quoting Waslaski v. State, 2013 ND 56, ¶ 7, 828 N.W.2d 787). "When reviewing an appeal from a summary denial of post-conviction relief, we review it as we would an appeal from summary judgment." Id. "The party opposing the motion is entitled to all reasonable inferences at the preliminary stages of a post-conviction proceeding and is entitled to an evidentiary hearing if a reasonable inference raises a genuine issue of material fact." Lindsey v. State, 2014 ND 174, ¶ 7, 852 N.W.2d 383 (quoting Coppage v. State, 2011 ND 227, ¶ 8, 807 N.W.2d 585).

         [¶ 5] If the State moves for summary disposition, the petitioner must support the application with evidence. Delvo v. State, 2010 ND 78, ...

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